If somebody has been left out of a Will, or has been unfairly treated in terms of the amount of the inheritance, they may be able to make a claim against the estate. At Purcell & Purcell we are able to provide sound advice in both bringing a claim upon the estate or defending a claim.
There are three steps the Court must consider in such claims which are as follows:
- Is the Claimant one for whom the deceased had a responsibility to make provision?
- If so, was the provision made for the claimant inadequate for his or her proper maintenance and support?
- If not, what as at the date of trial is in fact adequate provision?
In these circumstances where the Court is satisfied that an obligation existed and was not met by the person who made the Will, the Court may make an Order for the provision of such person.
Under Section 91 of the Administration of Probate Act 1958, sets out the factors the Court must have regard to in considering a Family Provision Claim. Please find below a list of the factors that the Court takes into account;
- Any family or other relationship between the deceased person and the applicant including the nature of the relationship and, where relevant the length of the relationship;
- Any obligation or responsibilities of the deceased person and where relevant, the length of the relationship;
- Any obligation or responsibilities of the deceased person to the applicant, any other applicant and the beneficiaries of the estate;
- The size and nature of the estate of the deceased person and any charges and liabilities to which the estate is subject;
- The financial resources (including earning capacity) and the financial needs of the applicant, of any other applicant and of any beneficiary of the estate at the time of the hearing and for the foreseeable future;
- Any physical, mental or intellectual disability of any applicant or any beneficiary of the estate;
- The age of the applicant, any contribution (not for adequate consideration) of the applicant to building up the estate or to the welfare of the deceased or the family of the deceased;
- Any benefits previously given by the deceased person to any applicant or to any beneficiary;
- Whether the applicant was being maintained by the deceased person before that person’s death either wholly or partly and, where the court considers it relevant, the extent to which and the basis upon which the deceased had assumed that responsibility;
- The liability of any other person to maintain the applicant;
- The character and conduct of the applicant or any other person;
- Any other matter the court considers relevant.
This is a very general guide only so please contact us to discuss your particular circumstances.
Is there a time limit
Yes, there is. You have only 6 months from the date of probate is granted to make a claim. In certain circumstances, we might be able to obtain an extension of the time limit so please contact us to discuss your situation.
What if I don’t believe the Will was valid?
You can challenge a Will if you believe that the will is a forgery or if the person lacked the mental capacity to make a Will. You can also challenge a Will if you believe that undue influence was brought to bear upon the deceased or if there was fraud involved.
How do I make a claim?
First, contact a lawyer, who can assess your claim and discuss the particular circumstances of your claim. If it’s worth continuing we will contact the executors and notify them of your claim. We will then gather evidence, prepare documents and make an offer to the executors. Many claims are settled through negotiation at this stage.
If the matter isn’t resolved then we can lodge documents with the court to initiate proceedings. We can still negotiate and in some cases mediation will be required by the court.
Failing all else, we will proceed to a court hearing wherein the evidence will be presented and the judge will make a decision.
We can help
At every stage of contesting or challenging a Will it’s important to have sound, experienced legal advice. We have the skills to negotiate on your behalf to avoid costly court fees, but if it comes down to court we also have the skills to conduct your matter.